Friday, 16 May 2014

Deportation  of  foreign  terrorists  from  Canada


Canada has no tolerance of terrorists be they homegrown or foreign. With the former, we can’t throw them out of Canada if they are born in Canada however, if they are naturalized Canadian citizens and it is established that they lied to get into Canada, they can be removed from Canada. With respect to the latter kind of terrorists, they can be thrown out of Canada, but that isn’t as simple as we would like it. This article deals with the procedure involved and how the Supreme Court of Canada dealt with such a terrorist that Canadian authorities want to throw out of Canada.


The terrorist’s name is Mohamed Harkat and he was born in Algeria. In 1995, this man entered Canada with a fake Saudi Arabian passport. That alone is sufficient to evict him from Canada. Two years later, he was granted refugee status. The Canadian authorities screwed up. They should have contacted the Saudi Arabian embassy to see if the passport was legitimate.  If it was established that the passport was a phony, they could have thrown this man out of Canada.


However, since he was claiming to be a refugee from Algeria, throwing him out of Canada would not be as simple as simply putting him on a plane. Remember, he did not have a legitimate passport. Even if the Algerian embassy gave him an Algerian passport, he could still ask for refugee status. 

In Algeria in 1995, international complaints about the human rights situation in Algeria continued with Amnesty International’s criticism of the government for the deaths of 96 inmates during a riot in the Serkadji prison in Algiers early in the year and for its extrajudicial killings by the security forces. In the previous years, estimates of the number of persons killed between 1992 and September 1994 ranged between 4,000 and 30,000 although the government believed that the number was approximately 10,000 in the war between the government and Islamist groups.  In my opinion, there were sufficient grounds for anyone flying to Canada from Algeria to ask Canada for refugee status. 


Harkat married a Canadian woman (Sophie Lamarche of Ottawa) in 2001. I don’t know if they have any children.   


 Harkat was alleged to have come to Canada for the purpose of engaging in terrorism.  In 2002, a security certificate was issued against him under the Immigration and Refugee Protection Act. (IRPA) Section 77(1)  states that the Minister of Citizenship and Immigration shall sign a certificate stating that a permanent resident or foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, and shall refer the certificate to the Federal Court.      


It was the government’s opinion that Harkat was a sleeper agent. Such an agent is a spy who is placed in a target country or organization, not to undertake an immediate mission, but rather to act as a potential asset if activated or given direct instructions by those that sent him or her to the target.  

After a successful constitutional challenge of the then existing IRPA security certificate scheme and subsequent amendments to the IRPA, a second security certificate was issued against Harkat and sent to the Federal Court for a determination as to its reasonableness.  During the proceedings, the special advocates appointed to protect the interests of Harkat in the closed hearings sought to obtain disclosure of the identity of human sources who provided information regarding Harkat to the Canadian Security Intelligence Service (CSIS) as well as permission to interview and to cross-examine them.  The designated judge rejected their request, finding that the common law police informer privilege should be extended to cover CSIS human sources.  The designated judge also rejected their request to compel the ministers to obtain updated information from foreign intelligence agencies on several alleged terrorists with whom Harkat was claimed to have associated.  In addition, Harkat’s request to exclude from the evidence summaries of intercepted conversations on the ground that the original recordings and notes of these conversations were destroyed pursuant to CSIS policy OPS-217 was refused by the designated judge.  The designated judge found the security certificate scheme under the amended IRPA to be constitutional, and concluded that the certificate declaring Harkat inadmissible to Canada was reasonable.  On appeal, the Federal Court of Appeal upheld the constitutionality of the scheme but found that the identity of CSIS human sources is not protected by privilege.  It also excluded from the evidence the summaries of intercepted conversations to which Harkat had not been privy, and remitted the matter to the designated judge for redetermination on the basis of what remained of the record after the exclusion of the summaries. 

Obviously, Harkat was rightly concerned that he couldn’t have direct access via his lawyer to the information given to CSIS that was used against him. Normally anyone charged with a crime has access to statements given by witnesses when copies are given to a defendant.

The matter ended up in the Supreme Court of Canada. The court said that the impugned provisions of the IRPA scheme are constitutional.  They do not violate the named person’s right to know and meet the case against him, or the right to have a decision made on the facts and the law. 

Obviously then alleged defects of the IRPA scheme must be assessed in light of the scheme’s overall purpose and of the two central principles that guide the scheme:  (1) the designated judge is intended to play a gatekeeper role, is vested with broad discretion and must ensure not only that the record supports the reasonableness of the ministers’ finding of inadmissibility but also that the overall process is fair; and (2) participation of the special advocates in closed hearings is intended to be a substantial substitute for personal participation by the named person in those hearings.  However, the scheme remains an imperfect substitute for full disclosure in an open court, and the designated judge has an ongoing responsibility to assess the overall fairness of the process and to grant remedies under s. 24(1) of the Charter where appropriate. That section states that anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. This is why Harkat took the matter to the Supreme Court of Canada for a ruling. 

I should point out that the special advocates referred to in the previous paragraph are lawyers who have been specifically chosen by the government to act as lawyers who are competent, honest and will act for those the government wants to remove from Canada. They have access to secret documents which includes statements from witnesses. Once they have received the information, they can pass it on to their clients as to what was said about them but they can’t disclose who the witnesses are nor can they subpoena those witnesses as witnesses for the defence. The lawyer can send in written question to CSIS for more information from the witness.                                        


I realize that this seems unfair and it is but one has to keep in mind that if the name of the witness was disclosed, his or her position as a confidential informant could be compromised and that person and/or his family could possibly be murdered.

The designated judge must be vigilant and skeptical with respect to the claims of national security confidentiality and must ensure that only information or evidence which would injure national security or endanger the safety of a person is withheld from the named person.  Systematic over-claiming would infringe the named person’s right to a fair process or undermine the integrity of the judicial system, requiring a remedy under section 24(1) of the Charter. It was that remedy that Harkat was seeking in the Supreme Court of Canada.

The Court ruled that the IRPA scheme’s approach to disclosure, which fails to provide for a balancing of countervailing interests, does not render the scheme unconstitutional.  The court also said that Section 7 of the Charter does not require a balancing approach to disclosure; rather, it requires a fair process be given to Harkat.  The court also said that Parliament’s choice to adopt a categorical prohibition against disclosure of sensitive information, as opposed to a balancing approach, does not as such constitute a breach of the right to a fair process.


The court also said that the communications restrictions imposed on special advocates do not render the scheme unconstitutional.  They are not absolute and can be lifted with judicial authorization, subject to conditions deemed appropriate by the designated judge.  The judicial authorization process gives the designated judge a sufficiently broad discretion to allow all communications that are necessary for the special advocates to perform their duties.  This broad discretion averts unfairness as the designated judge can ensure that the special advocates function as closely as possible to ordinary counsel in a public hearing.  The judge should take a liberal approach in authorizing communications and only refuse authorization where the Minister has demonstrated, on a balance of probabilities, a real risk of injurious disclosure.  In addition, the named person and his public counsel can send an unlimited amount of one-way communications to the special advocates at any time throughout the proceedings.  


Further, the admission of hearsay evidence or the denial of the opportunity for special advocates to cross-examine sources does not render the IRPA scheme unconstitutional.  The IRPA scheme achieves the purpose of excluding unreliable evidence by alternative means to the rule against hearsay evidence and the right to cross-examine witnesses as it provides the designated judge with broad discretion to exclude evidence that is not “reliable and appropriate”, which allows the judge to exclude not only evidence that he or she finds, after a searching review, to be unreliable, but also evidence whose probative value is outweighed by its prejudicial effect against the named person. When the matter was heard in the Federal Court, the judge deemed that the evidence submitted against Harkat was reliable and therefor permitted it to be used against him. The Supreme Court agreed with that ruling.

The court also said that CSIS human sources are not protected by a class privilege.  First, police informer privilege does not attach to CSIS human sources.  The differences between traditional policing and modern intelligence gathering preclude automatically applying traditional police informer privilege to CSIS human sources.  While evidence gathered by the police is traditionally used in criminal trials that provide the accused with significant evidentiary safeguards, the intelligence gathered by CSIS may be used to establish criminal conduct in proceedings that have relaxed rules of evidence and allow for the admission of hearsay evidence.  Second, the Federal Court should not create a new privilege for CSIS human sources.  If Parliament deems it desirable that CSIS human sources’ identities and related information be privileged, it can enact appropriate protections.  The IRPA scheme already affords broad protection to human sources by precluding the public disclosure of information that would injure national security or endanger a person.

Harkat was faced with the problem that whatever was said against him, was in fact could be used against him even though he didn`t have direct access to the informant at trial or by any other means.

Harkat did spend 20 years in Canada and during that time in Canada, he was never charged with a crime and the risk of him being a danger to people in Canada is zero. If he was a hidden terrorist and those whom he worked for wanted him to commit a terrorist act in Canada, would have called upon him much sooner.


The appropriate remedy for the destruction of materials pursuant to CSIS policy OPS-217 must be assessed on a case-by-case basis and must be tailored to address the prejudicial effect on the named person’s case.  The summaries of materials destroyed pursuant to policy OPS-217 should only be excluded under section 24(1) of the Charter if their admission would result in an unfair trial or would otherwise undermine the integrity of the justice system.  In this case, the designated judge did not err in refusing to exclude the summaries of intercepted conversations that were tendered as evidence by the ministers.  Although the destruction of the original CSIS operational materials caused the ministers to fail to meet their disclosure obligations towards Harkat and therefore to breach section 7 of the Charter, the exclusion of the summaries is not necessary to remedy the prejudice to Harkat’s ability to know and meet the case against him, or to safeguard the integrity of the justice system.  The disclosure of the summaries in an abridged version to Harkat and in an unredacted form to his special advocates was sufficient to prevent significant prejudice to Harkat’s ability to know and meet the case against him. 
He does have one way to remain in Canada. If he can satisfy the Immigration authorities that if he is returned to Algeria, he will be subjected to torture or death, he can remain in Canada.

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